Appeal in RIAA case to focus on “unconstitutionally excessive” punishment

A week after saying she would appeal a $222,000 copyright infringement verdict …

A week after signaling her intention to appeal the $222,000 copyright infringement verdict handed down by a federal jury, Jammie Thomas has filed her notice of remittitur with the US District Court for the District of Minnesota, asking the judge to slash the jury's damage award. As she begins her efforts to overturn the jury's actions, Thomas is choosing to focus on the amount of the jury's award as she begins her battle to have the damage award overturned, rather than filing an appeal on the basis of the jury instructions.

According to a copy of Thomas' motion seen by Ars, Thomas wants a retrial on the actual damages allegedly suffered by the record labels as the result of the sharing of the 24 recordings she was found to have distributed via KaZaA. Her argument is that the award handed down by the jury is unconstitutionally excessive.

It's an argument that has been raised in other file-sharing cases. We first saw it made in the case of UMG v. Lindor, where Marie Lindor's attorney Ray Beckerman argued that the RIAA's actual damages are in the neighborhood of 70¢ per song, less than 0.1 percent of the minimum statutory damage award of $750. Lindor—and others—have argued that, since the labels get about 70¢ of each 99¢ download sale, that's all the damages the record labels are entitled to collect.

The labels have fought hard to keep their wholesale pricing a secret, although RIAA counsel Richard Gabriel—who argued Capitol v. Thomas—later admitted that the 70¢ figure was "in the correct range."

In this, and all of the file-sharing lawsuits, the record labels seek only statutory damages (which are theoretically related in some way to the actual damages suffered), and not punitive damages (awarded to punish the infringer). The range of statutory damages is broad: from $750 to $30,000 for nonwillful infringement and up to $150,000 for willful infringement. Thomas is arguing that any damage award above and beyond the labels' actual damages is "purely punitive" and should be "scrutinized by the Court."

Thomas would like to see the record companies forced to prove their actual damages due to downloading, a figure that Sony BMG litigation head Jennifer Pariser testified that her company "had not stopped to calculate." In her motion, Thomas argues that the labels are contending that their actual damages are in the neighborhood of $20. Barring a new trial over the issue of damages, Thomas would like to see the reward knocked down three significant digits—from $222,000 to $151.20.

In the motion, Thomas' attorney Brian Toder argues that cases like BMW of North America v. Gore and State Farm v. Campbell suggest that statutory damages should be capped at 10 times the actual damages suffered. Damages in excess of that are unconstitutional, he argues.

"In the instant matter, defendant Thomas urges the Court to consider the statutory damages to be tantamount to an award of punitive damages, since it is based not upon plaintiffs' losses, but rather defendant's conduct," concludes the motion. "Whether the Court recognizes actual damages of zero dollars, $20 or whatever figure plaintiffs suggest is a fair measure of their actual damages for the 24 subject recordings, the ratio of actual damages to the award is not only astronomical, it is offensive to our Constitution and offensive generally."

In a statement given to Ars Technica, an RIAA spokesperson accused Thomas of not taking responsibility for her actions, and said that they want to resolve the case in a "fair and reasonable" fashion. "It is unfortunate that the defendant continues to avoid responsibility for her actions," the spokesperson told Ars. "We will continue to defend our rights."

Should the court decide against a new trial, Thomas would then have 30 days to appeal the original verdict, and she could use that opportunity to argue that the infamous jury instruction no. 15 was flawed. As we noted in our post-mortem of the trial, the question of whether making a file available over a P2P network is infringement as defined by the Copyright Act is still an open one.